ACCESS TO JUSTICE FOR CHILDREN: Jargon buster & FAQs

JARGON BUSTER

Amparo proceedings

A type of court case aimed at protecting an individual’s constitutionally guaranteed rights and freedoms. Originally a Mexican mechanism, but now used throughout the world.

Appeal

An application to a higher court for a ruling to be reversed.

Child, minor, minor child

According to the UN Convention on the Rights of the Child, a child is any person below the age of 18. A minor is a person who has not yet achieved the legal age of majority, which can be higher or lower than 18 depending on the jurisdiction.

Civil and criminal lawsuits

Civil law involves one party holding another responsible for wrongdoing. Criminal law involves holding a person responsible for criminal offences.

Civil and personal rights

Civil rights are the rights a person has in a political or social setting, such as freedom and equality. Personal rights are those which a person has over their own body.

Collective action

A procedure which allows a group of people to bring a court case together for a violation they suffered as a group or in the public interest.

Representative action/ Class action

A lawsuit brought by or against one person acting on behalf of a group. Originally a North American concept which is beginning to spread to other countries.

Constitutional review

A constitutional review allows judges to rule on whether a law is in line with a given country’s constitution.

Cassation review

An appeals court which only examines the legality of matters brought before it and verifies the interpretation of the law. But it does not have the power to re-examine the facts of the case.

Common law

A legal system in which the law is developed by judges, courts and tribunals through decisions which set precedent and affect subsequent cases. A British system widely implemented in its former colonies.

Civil law legal system

The legal system operating in countries which have a focus on civil law, meaning that the principles of law are codified by legislation, and not changed by the decisions of previous cases. Judges can interpret the law but their decisions are not binding on the outcome of future cases.

Dual legal system

Where two sets of laws operate in parallel, for example a jurisdiction governed by both secular and religious law. Depending on the type of dispute, a person will be subject to one set of law or another. Malaysia is an example.

Habeas corpus

A power of the courts to order that a detained person be brought before a court so that it can be determined whether the detention is lawful.

Injunctions

A court order preventing an act that affects another person’s rights, or compelling a person to carry out a certain act and imposing penalties if these conditions are not followed.

Intervention/Amicus curiae

An intervention is a procedure allowing a third party to enter a case when they have a right to be heard, or if their interests are affected by the outcome of the case. An amicus curiae is literally a ‘friend of the court’, a person or organisation which offers expert advice on a particular topic, but is not a party to proceedings.

Judicial review and administrative lawsuits

A judicial review gives judges the power to rule on the legality of a lawsuit by a State agency. Administrative lawsuits allow individuals to hold the State to account for its actions.

Legal aid system

Typically a system funded by the government allowing people to obtain financing for legal services if they are otherwise unable to afford them.

Mediation

A way of attempting to resolve disputes or complaints between two parties with the help of a third party, the mediator, who assists in negotiating a settlement or agreement.

Mixed legal system

A legal system which combines features from the common law and civil law legal traditions. Quebec, Israel and others.

Monist and dualist legal systems

When a monist State ratifies an international treaty its provisions are immediately incorporated into national law, so they can be applied directly by a national judge and invoked by citizens in a lawsuit, and national laws that conflict with the international treaty can be declared invalid. Ratification by a dualist State is more a statement of intent that requires new legislation to make an international treaty part of its national law and enforceable within the courts. Also see entry on ‘Ratification, incorporation’.

Next friend / Litigation friend

A person who brings a lawsuit on behalf of someone who is not legally able or lacks capacity to do so on their own.

Ombudspersons / National human rights body

An office independent of the government and courts which is charged with protecting human rights generally or the rights of a particular group of people. It may hear and investigate complaints of rights violations.

Personal status matters

A branch of law regulating family and personal relationships, commonly including marriage, divorce, child custody and inheritance.

Precedence

A decision or consideration which takes precedence is considered to be more important than other factors. Not to be confused with ‘Precedent’ (below).

Precedent

An earlier action or decision used as a guide in subsequent cases. Binding precedents must be followed in future similar cases.

Primary legislation

Laws formed and passed by a country’s legislature, which generally contain conditions under which the executive can act to implement the law.

Pro-bono

Legal work or advice handled at a reduced rate or free of charge as a public service.

Public interest litigation

Using the law to further a cause which is in the public’s interest, by bringing lawsuits or challenging unjust decisions.

Ratification, incorporation

Ratification is the formal recognition of a proposed law or treaty which can lead to incorporation, the process by which a law or treaty becomes part of the fabric of national law.

Remedies

Any of the ways a court, ombudsperson or any other decision maker enforces a right, imposes a penalty or makes an order at the conclusion of a case.

Standing (locus standi) under the law

In law, standing refers to the right to bring a case, to be heard in court, or to address the court on a matter before it.

Period/Statute of limitations

A time limit set by law after which it is not possible to bring legal proceedings in relation to a particular event or conduct.

Subsidiary/secondary legislation

Law written by a government body under the powers granted to it by primary legislation.

Sworn/unsworn testimony

Sworn testimony is evidence given by a witness who has made a commitment - though an oath, affirmation or promise - to tell the truth. When a testimony is unsworn, it means that it is not bound by of stated under a commitment to tell the truth.

UN Convention on the Rights of the Child

A binding international human rights instrument which lays out the rights of children everywhere in the world and has additional protocols to protect those rights. It is the United Nations’ most widely ratified human rights treaty.

OP3

The third Optional Protocol to the Convention on the Rights of the Child on a complaints procedure is a treaty allowing children to complain directly to the UN Committee on the Rights of the Child when they believe their rights have been violated. Children cannot use this mechanism if their country has not implemented the protocol and can only make a complaint if their national legal system has not been able to provide an effective remedy.

Utopia /Eutopia

Utopia refers to a mythical, perfect place which may not exist, while Eutopia describes a place of perfect well being which is still attainable.

FAQs

What do we mean by access to justice?

Access to justice is a human right, but it is also what makes other rights a reality. For children’s rights to be more than a promise, there must be a way for those rights to be enforced. Access to justice for children means that children, or their appropriate advocates, must be able to use and trust the legal system to protect their rights.

Why did CRIN carry out this research?

This research shows the way that national legal systems can be used to challenge violations of children’s rights and the ways that children can use the law to assert their own rights. We hope the findings of this project will guide governments on how to improve children’s access to courts and other complaints mechanisms, and encourage the UN and regional bodies to address children’s access to justice in a more systematic way. We hope it will inspire NGOs and children’s advocates to consider stronger and more strategic forms of advocacy, and encourage lawyers to assist children and their representatives with seeking redress through the legal system.

Why is my country ranked so high / low?

This global report was prepared based on the content of the country reports, as amended as of 1 November 2015. Each country report was coded to help us analyse trends across the world and to develop the scoring system that forms the basis of the global ranking. Full details of the coding scheme and methodology are available online at: www.crin.org/home/law/access/methodology. Full details of countries’ provisions referred to in this report are available in the country reports atwww.crin.org/en/node/42362.

How could my country improve access to justice for children?

While CRIN has not provided a set of recommendations for each country comparing the outcome of your country’s individual access to justice report with our idealised Eutopian State report is a good starting point. If you find that the Eutopian state has a way of defending or enforcing children’s rights that your state does not you can ask your government why and investigate ways to change this.